What is Common Law?

Common Law is a term I use as an umbrella concept, shorthand for a comprehensive world-view of limited sovereignty, restricted government, private law (property and contract), the self-reliant citizen, the market order not only of goods and services but of credit and debt and goodwill, of coordination of equals rather than command by superiors of inferiors. Another term for this is the rule of law. But because that latter term is fuzzy and not often filled in with concrete content, I resort to common law, which is the better term for that reality anyway.

But the term common law does generate some confusion. Usually when one hears it, one thinks of the historically determined Anglo-Saxon and cognate legal systems, with all of their peculiarities and practices, which only the practicing lawyer has occasion to master.
Indeed, this is a valid viewpoint. For one salient characteristic of true common law is that it develops practically through the process of adjudication, in the courtroom, through the dialectic of adversarial thesis and antithesis. Here, of course, lawyers rule the roost. But that does not mean that common law is not also something more than mere practitioners’ fodder.
Hence, it cannot be that the practicing lawyer “owns” this system, and views any incursion by “laymen” to be illegitimate. But alas it is more often so than not. Yes, the guild mentality reigns here as everywhere else, despite the fact that in a democracy, the law ought to be a domain open to the citizen, accessible to his inquiry, amenable to his uses. Ah, for a return to the days of a truly liberal conception of citizenship, where the professional saw his task as aiding the gentleman citizen rather than lording it over the unclean and untutored! But that is a subject for another day.
We need the historically grown positive law, even for legal and political philosopy, even for economics, because without it we are all at sea. Which means that the practitioners of that law cannot withhold it as their own private domain. The law is of and for us all. And, to properly understand common law, one must understand the philosophy behind the very notion of a common law.
Very simply, common law is law which applies across the board in a given jurisdiction, applies to all equally. It is the uniform law of a sovereign polity. And, beyond this, it is the general equity behind all positive law. So it is both basic principles, and practical application thereof in a universal way. Opposed to this regime is the regime of privilege, where the rulers exercise their wills to impose commands or orders or distributions, rather than allowing matters to be arranged by free and equal individuals in the give-and-take of bargaining owners. The regime of privilege ruled the roost in pre-modern Europe, and has since taken up its positions in modern government, with its war against the rule of law in favor of favoritism, privilege, and interest-group-based politics.
To combat privilege we need to recover the concept of the common law. I hope to set up a web site soon dedicated specifically to exploring the common law paradigm. This will integrate the various books I’ve written, and will write, on the subject, as well as other work in the fields of law, politics, and economics, so as to see them in the light of this same paradigm.
Stay tuned.

Cloverfield Government

Well it’s about time I woke up from hibernation to begin posting again. Not much to say for awhile there, not to mention being preoccupied with finishing the next volume of the Stahl translation, about the state and constitutional law. I hope to have it published within a month (that’s quite optimistic though). At any rate, I did have a thought to communicate! And that is this. I finally got around to watching the movie “Cloverfield.” It’s not one of those movies my wife likes to see, so it sat around gathering dust until she went out of town for a few days, at which point I blew the dust off of the said DVD and watched it. What a grotesque movie, yet very well done, because it seemed real enough to actually have happened. But, here comes the thought I wanted to communicate: the monster in Cloverfield, while highly believable, was not quite up to the times. If he really wanted to come over as a modern-day monster, he would have gotten on the national news, have blamed all the carnage in Manhattan on the army, and stated that he really was there to fix things, to restore order, to rebuild, he being the only entity large enough to be able to do that. After all, isn’t that what our government has done? Destroyed the economy through years of either parasitic or blatantly destructive action (e.g., subprime mortgage sponsorship), and then blame the entire mess on the victims, to wit, business and the market. We have a Cloverfield government; but there are those who are filming with their camcorders for posterity’s sake. This hopefully will allow future generations to learn from our mistake, not to listen to big ugly green monsters, replete with giant teeth, in politicians’ clothing.

What is a Crisis of Trust?

We hear a lot these days about the current financial crisis being one of trust. Banks don’t trust each other any more, lenders don’t trust borrowers, investors don’t trust who or what they are investing in. That is all true, but it does not get to the heart of the matter.

What is trust? It is confidence that commitments will be honored, that agreements will be kept. Which gives us an indication of the true nature of the capitalist economy.

Classical economics has many virtues, but it has also saddled capitalism with the concept of homo economicus, the egotistical, self-serving economic actor as the core of the capitalist system. This is a gross misconception. Capitalism is not built upon self-serving egotists but upon people willing to make commitments to each other, both short-term and long-term, regarding their economic resources. That is what credit and debt, borrowing and lending, are all about. The commitments are mutual. When these commitments are reneged on on the scale they have been in the current crisis, the system fails.

Therefore it is a much better characterization of capitalism to label it the “commitment economy” rather than the “greed economy,” which is what the Left paints it as, thanks to classical economics.

Capitalism is commitments, not greed. The trust one hears so much about is trust in keeping commitments. Capitalism, friends, is the commitment economy.

Anticapitalism as Default Mode

What explains the uphill battle Republicans have in convincing people that their agenda is better for the economy than that of the Democrats? What explains the ease with which Democrats can pretend that economic woes are attributable to Republicans, in the face of all evidence to the contrary?

One may blame the monolithic left-wing mainstream media for the one-sided coverage they provide on the issue, but that in fact begs the question a bit. For how is it that the media can come to be so one-sided?

The bottom line is, human beings have a basic anti-capitalist bias that is the default mode in the face of any crisis. Facts don’t matter, emotions take over, and no amount of explanation seems to penetrate. Democrats simply appeal to this emotion.

Like taking candy from a baby.